Ruben Hernandez

Backs to the wall

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These days, Harry Garewal, director of the Arizona Hispanic Chamber of Commerce, carries his passport wherever he goes.

Garewal’s new ID-carrying routine is a direct result of waves of laws and law enforcement in Arizona directed against undocumented workers, but also threatening the civil rights of citizen Latinos like him, he says.

“The mood today is such that I could be stopped any time and asked to prove I’m a citizen,” he says.

Garewal says he’s glad he won’t be looking for a job after Jan. 1.

As the head of AZHCC, he also is among Arizona Latinos embroiled in legal and political skirmishes sparked by a tough new state law that will shut down businesses hiring undocumented workers.

The Fair and Legal Employment Act passed takes effect Jan. 1, 2008, unless court challenges derail its implementation.

Latino civil rights advocates and Hispanic chambers of commerce say Arizona’s new employer sanctions law will discriminate against citizen Latinos and documented, or legal, immigrants.

The law also will create an atmosphere of intimidation and harassment against legitimate Latino employees and jobseekers if people filing complaints against businesses are allowed to do so without identifying themselves, as proposed in October by Maricopa County Attorney Andrew Thomas.

Non-Latino business groups also have filed lawsuits to void the law, saying the measure will shut down businesses that unknowingly hired workers with false documents. In addition, the law will create more costs, work and red tape for already harried small business owners – many of them owned by Latinos.

Others say the new law will create a platform for more political grandstanding by Thomas and Maricopa County Sheriff Joe Arpaio, whose two local agencies will have direct responsibility for the policing and execution of the new law.

The Fair and Legal Employment Act threatens to not be fair to Latinos, opponents like Garewal say, and has more to do with fear and politics than with protecting Arizona businesses and jobs.

Legality challenged

In federal court a coalition of Arizona business groups sued to block the measure less than two weeks after Gov. Janet Napolitano signed it into law in July.

The governor has conceded that the new laws have holes in it that need fixing. She particularly wants provisions protecting businesses and workers from unfair discrimination beefed up during the next session of the Legislature.

Jim Wiers, the state Senate minority leader, has called some of the law’s provisions “clear as mud,” and heads a Legislative committee to fix murky language, especially a clause that is unclear about whether people initiating complaints have to identify themselves.

However, Thomas has publicly stated that his office will accept anonymous complaints. The new law is vague on this provision, and Thomas has interpreted it to allow him leeway on anonymous complaints. All other Arizona counties will require identification.

Glenn Hamer, head of the Arizona Chamber of Commerce and Industry, says the law is flawed and will have adverse, unintended effects on state businesses and workers.

“Through legal and legislative action, we will shed light on the flaws within the new state law,” Hamer says.

In addition, civil rights and Latino advocacy groups have joined the suit.

The Mexican American Legal Defense and Educational Fund (MALDEF),  the American Civil Liberties Union, the ACLU of Arizona, the law firm of Altshuler Berzon and the National Immigration Law Center have filed a lawsuit in federal court on behalf of Chicanos Por La Causa and Somos America questioning the new law.

The lawsuit alleges the new law conflicts with federal immigration law and the U.S. Constitution. It also claims that the federal Basic Pilot Program verification database is flawed and will result in hardships for businesses and Latino legitimate workers.

“Under federal law, participation in the Basic Pilot Program is voluntary. By requiring Arizona employers to use this program, the Legal Arizona Workers Act runs afoul of the Constitution and will subject all Arizona employees regardless of legal status — Latinos in particular – to potential discrimination based on their race, ethnicity, or national origin,” says Kristina Campbell, the lead MALDEF attorney on the case.

U.S. District Court Judge Neil Wake set a Nov. 14 hearing on the lawsuit and says that he will rule on the case before Jan. 1 so that Arizona’s businesses won’t be confused by pending legal action.

That hearing will determine whether the Arizona law will take effect as scheduled or whether it is unconstitutional.

Meanwhile, Terry Goddard and the Arizona Attorney General’s office filed a motion in October in U.S. District Court saying the state has the right to regulate business licenses, and that Arizona’s employer-sanctions law is constitutional and does not conflict with any federal statute.

Goddard’s argument also goes against the conclusion reached last summer by a federal judge who struck down similar ordinances in Hazleton, Penn. That law tried to regulate the hiring of illegal workers and limit where illegal immigrants could live. The judge ruled that the laws were unconstitutional, and immigration law was a federal domain.

Opposing initiatives

Two initiatives loom in the fall of 2008: One that would soften the provisions, and one that would make the provision tougher. Backers of both initiatives need to gather 153,000 signatures to get on the ballot. The one that gets the most votes will supersede the law passed by the Legislature.

One initiative is backed by Don Goldwater, the businessman who ran unsuccessfully in the Republican primary for governor in 2006.

Goldwater’s initiative pulls the employer’s business license at the first violation for knowingly hiring an illegal worker.

Andrew Pacheco, the Republican attorney who ran in the primary and lost against Andrew Thomas for county attorney in 2004, is behind the second initiative.

The difference is that Pacheco’s initiative would place felony penalties on identity theft, go after cash-for-work employers, and allow business owners to continue using I-9 forms and Social Security cards to verify workers’ status.

“This law is actually more firm and tougher and more fair,” Pacheco says.

Tucsonan Mario Cortez owns MC Construction, a company he founded. He says he has attended one of the seminars by local law firms that are proliferating since the new law was passed.

Cortez says that although his business will abide by the new law, he resents it.

“Basically, the law makes businesses agents for Border Patrol,” he says.

Provisions of New Employer Sanction Law

The new law would prosecute employers who knowingly hire workers who don’t have documents to work in the United States.

The enforcement provision:

Suspends for up to 10 days for the licenses of any business that is found to have “knowingly” hired an illegal worker. A second violation would result in permanent revocation of the license.

Requires employers to use the Social Security Administration’s e-Verify program to verify employees’ legal status and to match Social Security numbers and names with those of potential employees.

Requires the County Attorney’s Offices to notify Immigration and Customs Enforcement (ICE) and local law enforcement of the presence of undocumented immigrants, who would be arrested and deported.

Anyone who wants to make a complaint will have to do so in person, in writing and under oath in most Arizona counties. Written complaints must be signed by the complainant and notarized. Complaint forms will be available at the county attorney’s Web site on Jan. 1.

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